In my presentations on social media this year, I’ve talked a bit about the Phonedog v. Kravitz case where an employer sued a former employee who continued to use the company Twitter account he had started.

Are Your Accounts Under Lock & Key?

When the employee left, he merely changed the Twitter account’s handle to his own name and took the 17,000 Twitter followers with him. 

The case was just settled this week for undisclosed terms; the Employment Law Daily blog does a good job recapping the lessons learned from that case here. (For another perspective, also check out the Social Media for Law Firm post on the same subject.)

One thing we DO know though is that the employee is keeping the Twitter account, which now has over 27,000 followers. 

What’s the Takeaway for Employers?

Consider requiring employees who use social media as part of their job to agree that the company owns the account.  Employers could, for example, ask for login and password information on specific accounts too.

One practical problem though is that some of these accounts sometimes blend the personal and professional, as the Trading Secrets blog has noted, so its important to have clear rules up front.  The Trade Secret Litigator blog has some more tips as well. 

Earlier this fall, another case, Eagle v. Morgan, also talked about this notion in the LinkedIn context.  The Employee Handbook blog did a nice summary as well.   Expect more suits like this in 2013.

United States District Court Judge Mark Kravitz passed away this week.  He had been fighting valiantly against ALS (or Lou Gehrig’s Disease). But for those of us familiar with the disease, it has no cure and death is, for most, only a matter of time.

The Connecticut Law Tribune posted an article last night remembering him, adding that Connecticut lawyers were “saddened” to hear of his passing.

Sad is certain the right adjective. Judge Kravitz was known for his brilliant mind and even-handed demeanor.   He epitomized the best qualities we seek in jurists: fair, bright, and respectful. 

In the employment law arena, he crafted numerous opinions that delved into topics such as whether the Pregnancy Discrimination Act covered employees who were no longer pregnant (yes), and whether a company’s failure to fill a posted position could constitute discrimination (no). 

His death leaves the federal court bench shorthanded

A sad day indeed.     

 

Back in February, I noted that a motion to dismiss in federal court — while still difficult to achieve — still had a pulse.  That’s important for employers because it provides a mechanism for getting rid of frivolous claims early on with lower costs than federal lawsuits typically cost.

A new district court case gives another example of how employers can use a motion to dismiss and illustrates what type of case is ripe for such a motion.

In Davis v. Norwalk Economic Opportunity Now, Inc. (NEON), the plaintiff alleged retaliation. But the extent of her allegations of retaliation consisted of the following:

On or about May 04, 2010, and continuing until August 20, 2010, the Defendant began discriminating against the Plaintiff by harassing her, issuing discipline to her, and eventually discharging her from employment, at least in part, because she opposed a discriminatory practice of the Defendant in harassing a fellow employee on account of the employee’s race (African American) and ancestry (African) in violation of 42 U.S.C. Sec. 2000e(3)(2010).

On its face, it might seem like enough — after all, she cites to a specific statute. But the court said that something more than a conclusory assertion is required; some facts are required too.

Left unstated are crucial facts supporting Ms. Davis’s claim — facts to which someone in Ms. Davis’s position surely must have access.  Whose treatment did Ms. Davis complain about, and when, and to whom? How did NEON respond? In what ways was Ms. Davis herself harassed and disciplined? Was there a connection between Ms. Davis’ complaints and her subsequent treatment? Were the two events close in time? Did they involve the same people?

In so doing, the court provides a roadmap as to what a plaintiff alleging retaliation should claim.  The court went on to add that it was not ruling that “any one of these questions must necessarily be addressed” to survive a motion but the absence of “any such detail” leaves it open to such a motion.

The court also indicated that the “deficiency” is “even more notable given the fact that Ms. Davis is represented by counsel”.  While pro se plaintiffs may be held to less stringent standards, “it necessarily follows that a complaint — such as Ms. Davis’s — drafted by a lawyer must be held to more stringent standards….”  Even so, the court provided the plaintiff with another opportunity to draft a complaint that complied with the rules.

What’s the Takeaway for Employers? In federal court, motions to dismiss should still only be considered a long shot.  But cases like this show that in limited circumstances, it is a shot worth taking.

Here’s an interesting question: Does the Pregnancy Discrimination Act protect an employee who is no longer pregnant?

Court: PDA covers maternity leave

A federal court decision in Connecticut yesterday says, yes. The case, Canales v. Schick Manufacturing, Inc. can be downloaded here.

The Pregnancy Discrimination Act (PDA) is part of Title VII and states that “women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes…as other person not so affected but similar in their ability or inability to work”.

In Canales, the employer had terminated the plaintiff approximately one month after she had given birth and while she was on materinity leave. It argued that the PDA didn’t cover her. The court disagreed  saying that the language applies “not just to women who are pregnant”.

Indeed, the court suggested that, at least within the Second Circuit (New York, Connecticut and Vermont), there were numerous cases that supported this proposition.

The court also found that the pregnancy discrimination claim under state law should also be handled in a similar fashion.

What’s the takeaway for employers? Understand the breadth of federal employment laws.  A maternity leave may invoke not just the PDA, but also FMLA, state FMLA, ADA and now Connecticut’s new paid sick leave law as well.

Any employer who has a good reason to terminate an employee out on such leave ought to realize that such a decision is going to be heavily scrutinzed.

 

On Wednesday, I posted about a recent District Court decision that held that "Paid Administrative Leave" is not an "adverse employment action.".  Without such an action, an employee typically cannot raise a claim of discrimination under the legal framework for analyzing such claims.

The same district court judge, The Honorable Mark Kravitz, released a decision a few days later also tackling that the subject of what whether a company’s failure to fill a posted position with any employee can give rise to a discrimination claim.  Ultimately, the court concluded that it was not.

The case, Roncallo v. Sikorsky Aircraft Corp. (download here) is not your typical Title VII case. Indeed, the plaintiff is a white male who claims, in part, that the company chose not to fill a posted position (which would have given him a promotion) because there were not enough diverse candidates that either applied or were qualified.

Ultimately, the court concluded that:

Although the fact that the company decided to close the position following [a manager’s] recommendation of four white male candidates may be sufficient to give rise to "speculation and conjecture," it is not sufficient to defeat Sikorsky’s lawful explanation for its action or to support an ultimate inference of unlawful discrimination.

Indeed, while the court’s final decision rested on this ground, it pointed out other issues with the Plaintiff’s case too. For example, of the twenty similar-level positions posted in the plaintiff’s division in 2008, seven were also left unfilled and twelve were filled with white males.  Those statistics, obviously, hardly show a bias against white males.

 

Conventional wisdom is (and a recent Time article suggests) that many doctors have poor handwriting (though at least one 2001 study attempted to shoot down that theory by concluding that doctors’ handwriting is no worse than non-doctors).  In fact, a 2001 study entitled "Medication errors related to potentially dangerous abbreviations" pointed to examples where the use of certain abbreviations led to patient illnesses and deaths.  

 

A new lawsuit filed this week in U.S. District Court in Connecticut puts a whole new spin on the issue.

In McConnell v. Pisciotta, medical doctor Bruce McConnell claims that he was improperly suspended from work at the Connecticut Mental Health and Addiction Services for five days last month because his supervisors "did not approve of certain abbreviations the plaintiff had used in writing documents."

He goes on to allege that other employees who have used similar abbreviations have not been suspended.

Now, I know what you’re thinking. What in the world is the legal claim that he is raising?  What category of claims do "Suspensions for Use of Abbreviations" fall under?

According to the Plaintiff, it is a violation of the 14th amendment of the United States Constitution:

[T]he defendants have irrationally and intentionally treated the plaintiff differently from others identically situated to the plaintiff, in violation of the plaintiff’s right to equal protection of the laws guaranteed by the Fourteenth Amendment to the United States Constitution as enforced through Sections 1983 and 1988 of Title 42 of the United States Code.

The Complaint is fairly bare of other details such as what the abbreviations were for.  (Presumably for something other than LOL and IMHO.)  And I surmise that there is much more to this matter than just "abbreviations" (just as readers of this blog are reminded that the complaint contains only ALLEGATIONS, not facts.)

But from my experience, it’s one of the more unusual constitutional claims out there.  It has been assigned to Judge Mark Kravitz, a very bright jurist on the bench.

Anyone else aware of any unusual 14th amendment cases out there arising from employment claims?